Citation Nr: 0330222
Decision Date: 11/04/03 Archive Date: 11/13/03
DOCKET NO. 96-49 014A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
(The issue of entitlement to service connection for diabetes
mellitus as a result of exposure to herbicide is addressed in
a separate decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
February 1969 to November 1970. This matter comes before the
Board of Veterans' Appeals (Board) on appeal from an October
1996 rating decision by the Los Angeles, California, Regional
Office (RO) of the Department of Veterans Affairs (VA).
REMAND
During the course of this appeal there was a significant
change in VA law. On November 9, 2000, the Veterans Claims
Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. § 5100
et seq.) became law. Regulations implementing the VCAA have
been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). The VCAA and implementing regulations apply in the
instant case. VAOPGCPREC 11-2000. A review of the record
shows the veteran was notified of the VCAA and how it applies
to his present appeal by correspondence dated in February
2001. See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In a decision issued May 1, 2003, the United States Court of
Appeals for the Federal Circuit (Federal Circuit) invalidated
38 C.F.R. § 19.9(a)(2)(ii), a regulation which had allowed
the Board to provide the requisite VCAA notice without
remanding such matters to the RO. Disabled American Veterans
et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.
Cir. 2003) (DAV). In a subsequent decision the Federal
Circuit also invalidated the 30-day response period contained
in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.
§ 5103(b)(1). Paralyzed Veterans of America v. Secretary of
Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003) (PVA). It was noted that the 30-day period
provided in § 3.159(b)(1) to respond to a VCCA duty to notify
was misleading and detrimental to claimants whose claims were
prematurely denied short of the statutory one-year period
provided for response.
Although the record includes medical evidence indicating a
present diagnosis of PTSD related to service, the Board notes
the veteran's reported experiences in Vietnam have not been
verified. The veteran claims that in approximately June 1969
he witnessed the deaths of 2 friends when a child threw a
hand grenade into a cab, that in July 1969 he shot a
Vietnamese man trying to board his ship, that in August 1969
he found the limbless body of an American soldier floating in
the ocean which was then taken aboard his ship, and that in
August or September 1969 he sustained injuries, including
having been shot in the forehead, during a land battle with
the Vietcong (also reported as having been incurred in
helicopter combat). In correspondence dated in April 2000 he
also stated 2 Vietcong divers were killed while planting
explosives to his ship after he reported their activity, but
no information as to when this incident occurred was
provided. The Board finds additional development is required
to attempt to verify these events.
In addition, as the veteran claims he was involved in combat
during service in Vietnam, the Board finds this matter must
be specifically addressed by the RO. The evidence also shows
the veteran is receiving Social Security Administration (SSA)
disability benefits, but that the medical records associated
with that claim are not of record.
The United States Court of Appeals for Veterans Claims
(Court) has held that credible supporting evidence of the
actual occurrence of an in-service stressor cannot consist
solely of after-the-fact medical nexus evidence. See Moreau
v. Brown, 9 Vet. App. 389, 396 (1996). In Cohen v. Brown, 10
Vet. App. 128 (1997), the Court held that the VA had adopted
the 4th edition of the American Psychiatric Association's
Diagnostic and Statistical Manual for Mental Disorders (DSM-
IV) and noted that the major effect was that the criteria
changed from an objective "would evoke ... in almost
anyone" standard in assessing whether a stressor is
sufficient to trigger PTSD to a subjective standard requiring
exposure to a traumatic event and response involving intense
fear, helplessness, or horror. The Court further held the
sufficiency of a stressor was now a clinical determination
for an examining mental health professional. Id. at 140,
141.
VA law provides that service connection for PTSD "requires
medical evidence diagnosing the condition in accordance with
§ 4.125(a) of this chapter; a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. . . ." 38 C.F.R. § 3.304(f).
Section 4.125(a) of 38 C.F.R. incorporates the 4th edition of
the DSM-IV as the governing criteria for diagnosing PTSD.
VA law also provides that if the evidence establishes that
the veteran engaged in combat with the enemy and the claimed
stressor is related to that combat, in the absence of clear
and convincing evidence to the contrary, and provided that
the claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. 38 C.F.R. § 3.304(f).
VA's General Counsel has held in a precedent opinion that
"the ordinary meaning of the phrase 'engaged in combat with
the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a
veteran participated in events constituting an actual fight
or encounter with a military foe or hostile unit or
instrumentality." The determination as to whether evidence
establishes that a veteran engaged in combat with the enemy
must be resolved on a case-by-case basis with evaluation of
all pertinent evidence and assessment of the credibility,
probative value, and relative weight of the evidence.
VAOGCPREC 12-99.
Accordingly, the case is REMANDED for the following:
1. The RO should review the record to
ensure compliance with all notice and
assistance requirements set forth in the
VCAA.
2. The veteran should be requested to
identify all sources of VA and non-VA
medical treatment he received for PTSD
since June 2002. The RO should obtain
complete copies of the medical records
(not already in the claims folder) from
all identified sources.
3. The veteran should also be requested
to provide additional information
clarifying the events and approximate
dates of his claimed stressors. The RO
should inform the veteran of which
evidence he is to provide and what
evidence VA will attempt to obtain.
4. The RO should obtain the records
associated with the veteran's claim for
SSA benefits. The RO must make continued
efforts to obtain these records unless it
is reasonably certain that such records
do not exist or that further efforts to
obtain them would be futile.
5. The RO should make another attempt to
verify the veteran's claimed stressor
events in Vietnam from the United States
Armed Services Center for Research of
Unit Records (USASCRUR) at 7798 Cissna
Road, Springfield, Virginia 22150-3197.
If USASCRUR is unable to provide such
information, they should be asked to
identify the agency or department that
may provide such information and the RO
should conduct follow-up inquiries
accordingly. In addition to any other
stressor events identified by the RO, the
USASCRUR should be requested to certify
the veteran's involvement in or exposure
to (a) the deaths of 2 friends when a
child threw a hand grenade into a cab,
(b) the shooting of a Vietnamese man
trying to board his ship, (c) the
discovery of the limbless body of an
American soldier floating in the ocean,
(d) a land battle with the Vietcong, and
(e) the killing of 2 Vietcong divers
while planting explosives to his ship.
6. Thereafter, the RO must make specific
determinations, based on the complete
record, as to whether the veteran engaged
in combat with the enemy or was exposed
to a stressor or stressors in service,
and if so, to identify the nature of the
specific stressor or stressors. The RO
must specify which, if any, of the
claimed stressor or stressors are
verified. In reaching these
determinations, the RO should address any
credibility questions raised by the
record.
7. The veteran should then be scheduled
for a VA psychiatric examination for an
opinion as to whether it is as likely as
not that he has PTSD (under DSM-IV
criteria) related to a verified event(s)
in service. The claims folder must be
available to, and reviewed by, the
examiner. The examiner should provide a
complete rationale for any opinion given
and reconcile the opinion with the other
medical evidence of record, to include
the December 1999 opinion of Dr. R.A.
8. After completion of the above and any
additional development deemed necessary,
the RO should review the issue on appeal
(including all evidence received
subsequent to the February 1999
supplemental statement of the case). The
RO must consider all applicable laws and
regulations (including revisions to
38 C.F.R. § 3.304(f)). If the benefits
sought remain denied, the appellant and
his representative should be furnished an
appropriate supplemental statement of the
case and be afforded the opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The purposes of this remand are to assist the veteran in the
development of his claim, and to ensure compliance with the
requirements of VCAA in keeping with the holding of the
Federal Circuit in DAV and PVA, supra. The appellant and his
representative have the right to submit additional evidence
and argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment by the RO. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).